New South Wales Bills New South Wales Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Home Building Amendment
(Warranties and Insurance) Bill 2010
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Home Building Act 1989 No 147 3
I certify that this public bill, which originated in the Legislative Assembly, has
finally passed the Legislative Council and the Legislative Assembly of New
South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2010
New South Wales
Home Building Amendment
(Warranties and Insurance) Bill 2010
Act No , 2010
An Act to amend the Home Building Act 1989 with respect to entitlements to the
benefits of statutory warranties and insurance; and for other purposes.
I have examined this bill and find it to correspond in all respects with the bill as
finally passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Clause 1 Home Building Amendment (Warranties and Insurance) Bill 2010
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Home Building Amendment (Warranties and Insurance)
Act 2010.
2 Commencement
This Act commences on the date of assent to this Act.
Page 2
Home Building Amendment (Warranties and Insurance) Bill 2010
Amendment of Home Building Act 1989 No 147 Schedule 1
Schedule 1 Amendment of Home Building Act 1989
No 147
[1] Section 3 Definitions
Insert in alphabetical order in section 3 (1):
non-contracting owner, in relation to a contract to do residential
building work on land, means an individual, partnership or
corporation that is the owner of the land but is not a party to the
contract and includes any successor in title to the owner.
owner of land means the only person who, or each person who
jointly or severally, at law or in equity:
(a) is entitled to the land for an estate of freehold in
possession, or
(b) is entitled to receive, or receives, or if the land were let to
a tenant would be entitled to receive, the rents and profits
of the land, whether as beneficial owner, trustee,
mortgagee in possession or otherwise.
[2] Section 18D Extension of statutory warranties
Insert after section 18D (1):
(1A) A person who is a non-contracting owner in relation to a contract
to do residential building work on land is entitled (and is taken to
have always been entitled) to the same rights as those that a party
to the contract has in respect of a statutory warranty.
(1B) Subject to the regulations, a party to a contract has no right to
enforce a statutory warranty in proceedings in relation to a
deficiency in work or materials if the warranty has already been
enforced in relation to that particular deficiency by a
non-contracting owner.
[3] Section 18D (2)
Omit the subsection. Insert instead:
(2) This section does not give a successor in title or non-contracting
owner of land any right to enforce a statutory warranty in
proceedings in relation to a deficiency in work or materials if the
warranty has already been enforced in relation to that particular
deficiency, except as provided by the regulations.
Page 3
Home Building Amendment (Warranties and Insurance) Bill 2010
Schedule 1 Amendment of Home Building Act 1989 No 147
[4] Section 92C
Insert after section 92B:
92C Operation of contract of insurance in relation to non-contracting
owners
(1) If the holder of a contractor licence enters into a contract to do
residential building work on land and a contract of insurance that
complies with this Act is in force in relation to that work, the
benefit of the contract of insurance is taken to extend (and to have
always extended) to any non-contracting owner in relation to the
land at the time the contract to do residential building work was
entered into as if the non-contracting owner were a person on
whose behalf the work is done.
(2) Subsection (1) applies irrespective of whether or not the contract
of insurance concerned contains a term to the same effect as that
subsection.
[5] Section 99 Requirements for insurance for residential building work
Insert after section 99 (2):
(2A) A provision of a contract of insurance providing cover for the
benefit of a person on whose behalf work is done on land is to be
read as providing (and to have always provided) for the same
benefit in relation to a non-contracting owner of the land.
(2B) Subsection (2A) applies irrespective of whether or not the
contract of insurance concerned contains a term to the same
effect as that subsection.
[6] Section 101 Requirements for insurance by owner-builders and others
Insert at the end of the section:
(2) In this section:
contractor means a person doing residential building work
otherwise than under a contract to whom section 96 applies.
[7] Schedule 4 Savings and transitional provisions
Insert at the end of clause 2 (1):
Home Building Amendment (Warranties and Insurance) Act
2010
Page 4
Home Building Amendment (Warranties and Insurance) Bill 2010
Amendment of Home Building Act 1989 No 147 Schedule 1
[8] Schedule 4
Insert at the end of the Schedule:
Part 18 Provisions consequent on Home Building
Amendment (Warranties and Insurance)
Act 2010
99 Interpretation
(1) In this Part:
amending Act means the Home Building Amendment
(Warranties and Insurance) Act 2010.
interim period means the period commencing on 17 May 2010
(the date of the decision in the relevant judgment) and ending on
the commencement of the amending Act.
relevant judgment means the decision of the New South Wales
Court of Appeal in Ace Woollahra Pty Ltd v The Owners--Strata
Plan 61424 & Anor [2010] NSWCA 101.
(2) For the purposes of this Part, proceedings are not finally
determined if:
(a) any period for bringing an appeal as of right in respect of
the proceedings has not expired (ignoring any period that
may be available by way of extension of time to appeal), or
(b) any appeal in respect of the proceedings is pending
(whether or not an appeal is brought as of right).
100 Application of Part
(1) This Part prevails to the extent of any inconsistency with any
other provision of this Schedule.
(2) Regulations made under clause 2 of this Schedule may have
effect despite any provision of this Part.
101 Relevant judgment and certain other proceedings unaffected
The amendments made by the amending Act do not extend to or
otherwise affect:
(a) the relevant judgement, or
(b) subject to clause 102 (3), any proceedings before a court or
tribunal that are finally determined, or
Page 5
Home Building Amendment (Warranties and Insurance) Bill 2010
Schedule 1 Amendment of Home Building Act 1989 No 147
(c) a decision of an insurer or the Building Insurers'
Guarantee Corporation made before the commencement of
the amendments that cannot be the subject of an appeal
because of clause 65 of the Home Building Regulation
2004.
102 Statutory warranties
(1) Section 18D (as amended by the amending Act) extends to a
breach of a statutory warranty in relation to residential building
work done on land owned by a non-contracting owner under a
contract entered into before the commencement of the amending
Act.
(2) A non-contracting owner in relation to a contract to do residential
building work on land who is entitled, on and after the
commencement of the amending Act, to the benefit of a statutory
warranty in relation to work done on the land may enforce the
statutory warranty:
(a) subject to subclause (3), in proceedings commenced in
accordance with Part 2C on or after the commencement of
the amending Act, or
(b) in proceedings commenced by the non-contracting owner,
but not finally determined, before the commencement of
the amending Act to enforce the same statutory warranty.
(3) A non-contracting owner in relation to a contract to do residential
building work on land who:
(a) is entitled to the benefit of a statutory warranty under
section 18D in relation to a particular deficiency in work
done on the land, and
(b) was found, in proceedings under Part 2C that were finally
determined during the interim period, not to be entitled to
enforce the same statutory warranty for that particular
deficiency solely because the owner was not a party to the
contract,
may enforce the same statutory warranty in proceedings
subsequent to the earlier unsuccessful proceedings that are
brought within 6 weeks after the commencement of the amending
Act.
(4) Nothing in this clause authorises or permits a non-contracting
owner who was a party in proceedings the subject of the relevant
judgment to bring subsequent proceedings under subclause (3).
Page 6
Home Building Amendment (Warranties and Insurance) Bill 2010
Amendment of Home Building Act 1989 No 147 Schedule 1
103 Application of amendments to existing insurance policies and
claims and proceedings
(1) Subject to the regulations, the amendments made by the
amending Act extend to any:
(a) contract of insurance entered into before the
commencement of the amendments (despite any provision
of the contract) (an existing contract), and
(b) proceedings on a claim under an existing contract
commenced but not finally determined before the
commencement of the amendments.
(2) Any payment purporting to be made under Part 6 of this Act to a
non-contracting owner under an existing contract or to a
beneficiary under an indemnity provided under section 103I (1)
before the commencement of the amendments made by the
amending Act is taken to have been validly made if it could
validly have been made if those amendments were then in force.
(3) This clause applies only to contracts of insurance entered into on
or after 1 May 1997.
Page 7
[Index] [Search] [Download] [Related Items] [Help]